Opinion
06 Civ. 13186 (LAK)(HBP).
November 20, 2008
OPINION AND ORDER
I. Introduction
Plaintiff Ruben Velez moves pursuant to Rule 15 of the Federal Rules of Civil Procedure for leave to file a second amended complaint substituting Officer Kevin McCarthy for defendant "John Doe Officer." Defendants oppose the motion on the ground that the amendment would be futile because any claims against McCarthy would be barred by the statute of limitations. Plaintiff contends that the proposed amendment relates back to the date of his original complaint under Fed.R.Civ.P. 15(c) and is not, therefore, time-barred. For the reasons set forth below, plaintiff's motion is denied.
II. Facts
Plaintiff, Ruben Velez, commenced this Section 1983 action pro se on November 14, 2006, alleging excessive force in connection with his arrest. Plaintiff's original complaint named as defendants two John Doe officers "of the 46 percent [sic] who worked on July 12, 2004 from lam to 3am" (Plaintiff's Complaint, dated November 14, 2006 ("Compl.") at 2, 3). In his original complaint, plaintiff alleges that he was "assaulted from behind with a gun, then chased down and beaten with a billy club in the head. As [I was] being handcuffed I was given lashes on my back" (Compl. at 3). Plaintiff claims that as a result of this attack, he suffered three separate cuts which required a total of eighteen staples (Compl. at 3, 5). Finally, in his complaint, plaintiff states that he filed a grievance regarding his claim that he was "assaulted and [then] charged with assault" and identifies an individual named Jose as another person involved in the incident (Compl. at 4).
On January 3, 2007, plaintiff wrote a letter to the Honorable Lewis A. Kaplan, United States District Judge, explaining that he was having difficulty determining the names of the John Doe defendants and requesting the Court's assistance (Letter of Ruben Velez to Judge Kaplan, dated January 3, 2007, attached as Ex. C to the Declaration of Scott Smedley, Esq., dated June 16, 2008 ("Smedley Decl.")). On January 30, 2007, Judge Kaplan issued an Order instructing the plaintiff to serve interrogatories on the Office of Corporation Counsel of the City of New York ("Corporation Counsel") and directing the Corporation Counsel to answer plaintiff's interrogatories "for the purpose of ascertaining the identities and addresses of the John Does" (Docket Item 4 at 1). The Order also instructed plaintiff that "[o]nce informed of the defendants' identities and addresses, plaintiff must file an amended complaint identifying his John Does by their proper names. . . . Plaintiff's failure to file an amended complaint within sixty (60) days of receiving the identifying information from the Office of Corporation Counsel may result in the dismissal of his complaint" (Docket Item 4 at 2).
Pursuant to this Order, plaintiff drafted a set of interrogatories, dated February 7, 2007, which requested that Corporation Counsel identify the defendants, their shield numbers and addresses (Plaintiff's Interrogatories to Discover Identities and Addresses of Defendants, dated February 7, 2007 (February 7, 2007 Interrogatories"), attached as Ex. E to the Smedley Decl.). Plaintiff's February 7, 2007 Interrogatories described these officers as:
[t]wo male caucasian officers, [o]ne about 5'5-5'8, 200-220 pounds with light hair. The other officer is about 5'8-5'10, 160-200 pounds with plain clothes. Who were on duty or otherwise present on July 12, 2004 from 1:00am til 3:00am. From the 46 percent [sic] in the Bronx.
On May 10, 2007, Corporation Counsel responded to these interrogatories in a letter to the Court, which stated that counsel's investigation had been unsuccessful and requested that plaintiff "provide additional information, such as birthmarks, eye color, or badge number" to assist in identifying the officers (Letter of Rachel A. Seligman, Esq., dated May 10, 2007, ("Seligman Letter") attached as Ex. F to the Smedley Decl.). The Seligman Letter also stated that part of the difficulty in identifying the officers was due to the fact that "based on our initial investigation, it appears plaintiff was not arrested on July 12, 2004 as he maintains in his interrogatories." (Seligman Letter at 1).
Plaintiff stated in his Complaint and in his interrogatories that he had been arrested on July 12, 2004, when in fact he had been arrested on July 14, 2004.
On May 15, 2007, in response to this letter, plaintiff served a second set of interrogatories on Corporation Counsel requesting the identities and addresses of the defendant officers (Plaintiff's Interrogatories to Discover Identities and Addresses of Defendants, dated May 15, 2007 ("May 15, 2007 Interrogatories"), attached as Ex. G to the Smedley Decl.). The May 15, 2007 Interrogatories were identical in all respects to the February 7, 2007 Interrogatories. Plaintiff also served a Freedom of Information Act ("FOIA") Request on the Office of Corporation Counsel, dated May 10, 2007, seeking:
all records, documents, notations, indications, representations, materials and information pertaining to (NYSID # 1747478R) assault on a police officer which occurred on July 12, 2004 and ended September 28, 2006.
(FOIA Request of Ruben Velez, dated May 10, 2007, attached as Ex. H to the Smedley Decl. (emphasis added)). Corporation Counsel failed to respond to both the May 15, 2007 Interrogatories and the May 10, 2007 FOIA request (Plf's Mem. at 2).
On September 12, 2007, the Honorable Judge Lewis A. Kaplan appointed counsel to represent plaintiff in this action (Docket Items 5, 6, 9, 10). On November 12, 2007, after the applicable three-year statute of limitations had run on the July 14, 2004 incident, plaintiff's counsel served a third set of interrogatories, requesting that Corporation Counsel:
Identify the two officers employed by the New York City Police Department who arrested the plaintiff in the above-captioned case on or about July 11-15, 2004 in New York City, Borough of the Bronx, and any other officer present at the arrest.
(Plaintiff's First Set of Interrogatories Directed to the Office of the Corporation Counsel of the City of New York, dated November 12, 2007, ("November 12, 2007 Interrogatories"), attached as Ex. I to the Smedley Decl.). On November 27, 2001, Corporation Counsel's Office responded that it was still unable to locate any information relating to the arrest of plaintiff in the Bronx on or about July 11-15, 2004 and requested that plaintiff execute a release providing access to sealed records pursuant to N.Y. Crim. Proc. L. 160.50(1)(d) (Letter of Jessica T. Cohen, Esq., dated November 27, 2001, attached as Ex. I to the Smedley Decl.). On December 17, 2007, after receiving the release from plaintiff, Corporation Counsel identified Officer Sean Fogarty as one of the arresting officers. Plaintiff filed an Amended Complaint on January 14, 2008 substituting Fogarty for defendant John Doe #1. Following the filing of Fogarty's Answer on February 6, 2008, an initial pre-trial conference was held in this matter on April 16, 2008. At the conference, Corporation Counsel identified McCarthy as another "individual likely to have discoverable information that defendant may use to support his claims or defenses" pursuant to Fed.R.Civ.P. 26(a)(1).
McCarthy was Fogarty's partner and allegedly was present at plaintiff's arrest on July 14, 2004 (Plf.'s Mem. at 3-4).
III. Analysis
Plaintiff now seeks to amend his Complaint to substitute McCarthy for defendant John Doe #2. Fogarty argues that plaintiff's motion to amend the complaint would be futile because any claims against McCarthy are barred by the three-year statute of limitations period (Def's Mem. at 6). Plaintiff claims that the motion to amend is not barred by the statute of limitations because it relates back to the date of the original Complaint (Plf. Mem. at 4).
A. Applicable Standard
The standards applicable to a motion to amend a pleading are well settled and require only brief review. Leave to amend a pleading should be freely granted when justice so requires. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962);Dluhos v. The Floating Abandoned Vessel, Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998); Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984) (a pro se litigant in particular "should be afforded every reasonable opportunity to demonstrate that he has a valid claim"); Gumer v. Shearson, Hamill Co., 516 F.2d 283, 287 (2d Cir. 1974). "Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996), aff'd, 116 F.3d 465 (2d Cir. 1997); accord American Home Assur. Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997).
A proposed amended complaint is futile when it fails to state a claim. Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990); Mina Inv. Holdings Ltd. v. Lefkowitz, 184 F.R.D. 245, 257 (S.D.N.Y. 1999); Parker v. Sony Pictures Entm't, Inc., 19 F. Supp.2d 141, 156 (S.D.N.Y. 1998), aff'd in pertinent part,vacated in part on other grounds sub nom., Parker v. Columbia Pictures Indus., 204 F.3d 326 (2d Cir. 2000); Yaba v. Cadwalader, Wickersham Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996);Prudential Ins. Co. v. BMC Indus., Inc., 655 F. Supp. 710, 711 (S.D.N.Y. 1987); see generally Dluhos v. Floating Abandoned Vessel known as "New York", supra, 162 F.3d at 69-70. While the burden of proving that a proposed amendment will relate back is on the party seeking leave to amend the pleading, the party opposing the amendment has the burden of demonstrating that leave to amend would be futile. Staskowski v. County of Nassau, 05-CV-5984 (SJF)(WDW), 2007 WL 4198341 at *4 (E.D.N.Y. Nov. 21, 2007) ("It is axiomatic that the party opposing an amendment has the burden of establishing that leave to amend would be futile."); Lugosch v. Congel, 00-CV-784, 2002 WL 1001003 at *1 (N.D.N.Y. May 14, 2002); citing Blaskiewicz v. County of Suffolk, 29 F. Supp.2d 134, 137-38 (E.D.N.Y. 1998), citing Harrison v. N.B.D. Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1998)).
VKK Corp. v. Nat'l Football League, 187 F.R.D. 498, 500 (S.D.N.Y. 1999) aff'd, 244 F.3d 114, 128 (2d Cir. 2001) ("the plaintiff has the burden of demonstrating that the newly named defendant knew or should have known that the failure to name it in the original complaint resulted from a mistake"); In re Enron Corp., 298 B.R. 513, 522 (Bankr. S.D.N.Y. 2003).
Leave to amend may be denied on the ground of futility "where the claim or defense proposed to be added has `no colorable merit'". Oliver v. Demarinis Co., 90 Civ. 7950 (SS), 1993 WL 33421 at *5 (S.D.N.Y. Jan. 29, 1993) (citation omitted); see also Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 783 (2d Cir. 1984) ("if the movant has colorable grounds to support its claim or defense, justice requires that leave to amend be granted"). The "colorable grounds requirement mandates that a district court may not deny a motion for leave to amend a pleading when said pleading is sufficient to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)." Children First Foundation Inc. v. Martinez, 04-CV-0927 (NPM), 2007 WL 4618524 at *5 (N.D.N.Y. Dec. 27, 2007); citing Kassner v. 2nd Avenue Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007); Estate of Ratcliffe v. Pradera Realty Co., 05 Civ. 10272 (JFK), 2007 WL 3084977 at *4 (S.D.N.Y. Oct. 19, 2007). "The proposed Amended Complaint may therefore be scrutinized as if defendant's objections to the amendments constituted a motion to dismiss under Fed.R.Civ.P 12(b)(6)."Journal Publ'g Co. v. American Home Assur. Co., 771 F. Supp. 632, 635 (S.D.N.Y. 1991); Prudential Ins. Co. v. BMC Indus., Inc.,supra, 655 F. Supp. at 711 (Although leave to amend should be freely given, "it is inappropriate to grant leave when the amendment would not survive a motion to dismiss.")
Therefore, an amendment may be denied as futile if defendant can show that there are no "set of facts consistent with the allegations in the complaint" which would entitle plaintiff to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 540, 127 S.Ct. 1955, 1969 (2007). To survive a motion to dismiss plaintiff's "factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atlantic Corp. v. Twombly, supra, 127 S.Ct. 1955, 1959 (overruling the language ofConley v. Gibson, 355 U.S. 41, 45-46 (1957) that a motion to dismiss should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"); see also Oliver Schools, Inc. v. Foley, 930 F.2d 248, 252 (2d Cir. 1991) (discussing the standard for denying an amendment as futile prior to Bell Atlantic); Blaskiewicz v. County of Suffolk, supra, 29 F. Supp.2d at 138 (same).
The Second Circuit has interpreted Bell Atlantic Corp. v. Twombly as "requiring a flexible `plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original); accord Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008); see also Wellnx Life Scis. Inc. v. Iovate Health Scis. Research, Inc., 516 F. Supp.2d 270, 283 (S.D.N.Y. 2007); Mazzaro de Abreu v. Bank of Am. Corp., 06 Civ. 673 (LMM), 2007 WL 2609535 at *3 n. 10 (S.D.N.Y. Sept. 10, 2007).
The Court of Appeals has repeatedly noted that the Trial Court has "broad" discretion in ruling on a motion to amend. Local 802, Associated Musicians v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Krumme v. Westpoint Stvens Inc., 143 F.3d 71, 88 (2d Cir. 1998); see generally Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000). "Although Rule 21, and not Rule 15(a) normally governs the addition of new parties to an action, the same standard of liberality applies under either rule." Clarke v. Fonix Corp., 98 Civ. 6116 (RPR), 1999 WL 105031 at *6 (S.D.N.Y. March 1, 1999) (internal quotation omitted), aff'd, 199 F.3d 1321 (2d Cir. 1999); see also Banco Central Del Paraguay v. Paraguay Humanitarian Found., Inc., 01 Civ. 9645 (JFK) (FM), 2003 WL 21543543 at *2 (S.D.N.Y. July 8, 2003) (standard for adding parties under Rule 21 is the same as that under 15(a) for other amendments).
B. Relation Back
There is no federal statute of limitations for a section 1983 claim and, consequently, the "statute of limitations for a section 1983 claim is generally the applicable state-law period for personal injury torts." City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 123 n. 5 (2005); citing Wilson v. Garcia, 471 U.S. 261, 275, 276 (1985); see also Owens v. Okure, 488 U.S. 235, 240-241, 249-51 (1989). In this District, the statute of limitations applicable to actions brought under Section 1983 is three years. Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996); Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995). The pending motion was filed more than three years after July 14, 2004, the date of the alleged assault, and therefore, plaintiff's claims against McCarthy can be timely only if the proposed amendment relates back to the date on which the original complaint was filed. See VKK Corp. v. Nat'l Football League, 244 F.3d 114, 128 (2d Cir. 2001) ("If a complaint is amended to include an additional defendant after the statute of limitations has run, the amended complaint is not time barred if it relates back to a timely filed complaint.").
Under Fed.R.Civ.P. 15(c)(1)(C), an amendment which adds a new defendant relates back to the original pleading if
the claims against the new party arise out of the same conduct or occurrence set forth in the original pleading and if within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for the mistake concerning the proper party's identity.
Fed.R.Civ.P. 15(c)(1)(C); Vasquez v. Mill, 03 Civ. 3905 (RJH), 2006 WL 2789914 at *4 (S.D.N.Y. Sept. 25, 2006). There is no dispute here that the claims plaintiff seeks to assert against McCarthy arose out of the same occurrence set forth in the original complaint. Therefore, in order for plaintiff's amendment to relate back to the date of the original complaint (1) McCarthy must have received notice of this action during the 120 day period provided for by Rule 4(m) such that he will not be prejudiced and (2) McCarthy must have known or should have known that he would be named as a defendant in this action if not for a mistake concerning his identity.
Fed.R.Civ.P. 15(c)(1)(A) also permits an amendment to a pleading to relate back to the date of the original pleading when "the law that provides the applicable statute of limitations allows relation back." Thus, if, the proposed amendment relates back under New York state law, it would not be futile. Neither party addresses the possibility of relation back under state law, and, therefore, I do not consider it.
1. Notice
As the Supreme Court succinctly put it "[t]he linchpin [of Rule 15(c)] is notice, and notice within the limitations period."Schiavone v. Fortune, 477 U.S. 21, 31 (1986). In order for plaintiff's amended complaint to relate back to the date of the original complaint, Rule 15(c) requires that plaintiff demonstrate that McCarthy received notice of the lawsuit "within the period provided by Rule 4(m)" so that he will not be prejudiced in defending this action on the merits. Fed.R.Civ.P. 15(c)(1)(C)(i). The Advisory Committee Notes indicate that Fed.R.Civ.P. 15 allows a name correcting amendment within the 120 days specified in Rule 4(m) plus "any additional time resulting from any extension ordered by the court pursuant to that rule." 1991 Advisory Committee Notes to Fed.R.Civ.P. 15; see, e.g.,Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1076 (2d Cir. 1993);Vasquez v. Mill, supra, 2006 WL 2789914 at *5.
The vast majority of cases interpret Fed.R.Civ.P. 15(c) as requiring that the party to be brought into the case receive notice of the action within 120 days of the filing of the complaint. Some courts, however, have found that "Rule 15(c) provides that notice can be given within the limitations period, or within 120 days of the timely filing of the complaint, whichever is later." Jermosen v. Coughlin, 89 Civ. 1866 (RJW), 1992 WL 131786 at *7 n. 9 (S.D.N.Y. June 3, 1992); Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 610 (M.D. Pa. 1992) (same); see also Yanez v. Columbia Coastal Transp. Inc., supra, 68 F. Supp.2d 489, 493 (D.N.J. 1999) (outlining the different approaches to Rule 15(c)'s notice requirement). Under the facts alleged in this case, the difference is immaterial because McCarthy did not receive notice within either period.
In this case, the Complaint was filed on November 14, 2006. Accordingly, Rule 15(c) required that McCarthy receive notice of this action before March 14, 2007. There is no evidence that McCarthy received personal notice of this action before March 14, 2007, as he had not yet been identified by plaintiff by that date. Plaintiff, however, argues that Corporation Counsel was put on notice of this action when he was served with plaintiff's first set of interrogatories and that notice can be imputed to McCarthy through notice to Corporation Counsel (Plf. Mem. at 6).
Plaintiff claims that Corporation Counsel received his first set of interrogatories on or about February 7, 2007 (Plf. Mem. at 5-6), whereas Corporation Counsel contends that he did not receive these interrogatories until April 10, 2007 (Seligman Letter at 1). Drawing all inferences in favor of plaintiff, as I must on a motion to deny an amendment as futile, I assume that Corporation Counsel received plaintiff's first set of interrogatories on the earlier date and within the 120-day period required by Rule 4(m). See Journal Publ'g Co. v. American Home Assur. Co., supra, 771 F. Supp. at 635; see also Grant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995).
"The court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the official(s) originally sued so long as there is some showing that the attorney knew that the additional defendants would be added to the existing suit." Velez v. Koehler, 87 Civ. 2019 (KMW), 1991 WL 130913 at *2 (S.D.N.Y. July 18, 1991), vacated on other grounds, 138 F.3d 474 (2d Cir. 1998),citing, Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989). The constructive notice doctrine is based on the theory that the newly added defendant is not prejudiced by the lack of notice if his attorney has already begun preparing a defense for the named defendant during the limitations period. See Ramos v. City of Philadelphia, Civ.A. 01-5072, 2002 WL 32348790 at *4 (E.D. Pa. Sept. 13, 2002) (The "concept of constructive notice is apparently based on the theory that if counsel is on notice to prepare a defense for additional defendants, then such defendants are not prejudiced by being named at a later date"), citing Felix v. New York City Police Dept., 811 F. Supp.2d 124, 128 (S.D.N.Y. Nov. 12, 1992).
Therefore, in the majority of cases in this Circuit applying the constructive notice doctrine, the attorneys have clear knowledge of the identity of the unidentified defendant, within the limitations period, such that it would be logical to assume that a reasonable attorney would either (1) inform his client of the prospective lawsuit or (2) takes steps to begin preparing a defense. Abdell v. City of New York, 05 Civ. 8453 (KMK) (JCF), 2006 WL 2620927 at *4 (S.D.N.Y. Sept. 12, 2006) (Corporation counsel had notice of the unnamed defendant's identity because it was representing the unnamed defendant on related state claims of false imprisonment stemming from the same incident); Mosley v. Jablonsky, 209 F.R.D. 48, 53 (E.D.N.Y. 2002) (complaint technically only named the city and the supervising officer as defendants but the body of the complaint identified the un-named officers accused of mistreating plaintiff and, therefore, corporation counsel knew or should have known that these officers would be added as defendants); Almeda v. City of New York, 00-CV-1407, 2001 WL 868286 at *3 (E.D.N.Y. July 26, 2001) (despite naming only the City, along with "John Doe" and "Ronald Roe" as defendants, the complaint emphasized the role of Sergeant Robert Barnes as plaintiff's "chief assailant" and therefore counsel had notice); Johnson v. Abate, 93 CV 1134 (JG), 1999 WL 1215560 at *3-4 (E.D.N.Y. Dec. 2, 1999) (allowing an amendment to substitute Christina Washington-Koger for Ms. Jane Doe Washington because (1) defense counsel sent plaintiff discovery materials that included a report listing Corrections Officer Christina Washington-Koger as a witness to the attack and (2) the name "Jane Doe Washington" sufficiently identified Officer "Washington-Koger" that defense counsel knew or should have known that plaintiff would later seek to name Officer Koger as a defendant); Campbell v. Coughlin, 88 Civ. 0697 (MJL), 1994 WL 114831 at *2 (S.D.N.Y. March 31, 1994); Dupree v. Walters, 116 F.R.D. 31, 34 (S.D.N.Y. 1987); Morrison v. Lefevre, 592 F. Supp. 1052, 1057 (S.D.N.Y. 1984); Davis v. Krauss, 93 F.R.D. 580 (E.D.N.Y. 1982); but see Samuels v. Dalsheim, 81 Civ. 7050 (PKL), 1995 WL 1081308 at *14 (S.D.N.Y. Aug. 22, 1995) ("It is sufficient for the purpose of constructive notice that . . . counsel knew or should have known that a particular category of defendants would be added to the action, without necessarily knowing the actual identity of each defendant to be added."),citing Hodge v. Ruperto, 739 F. Supp. 873, 881 (S.D.N.Y. 1990);Velez v. Koehler, supra, 1991 WL 130913 at *2-*3 (plaintiff's complaint which named two officers and one John Doe officer was sufficient to put corporation counsel on notice that plaintiff intended to sue Officer O'Brien, even though corporation counsel had never spoken with Officer O'Brien).
The constructive knowledge doctrine does not appear to apply here because (1) Corporation Counsel was not representing either defendant, at any time during the limitations period and (2) had no notice of the defendants' identities during the limitations period. There was no defense attorney in this case at any point during the limitations period; Fogarty was not named in this action until January 14, 2008, six months after the statute of limitations had run. Consequently, Corporation Counsel could not have begun preparing a defense for either defendant during the limitations period and had no reason to inform McCarthy of this action. See Garvin v. City of Philadelphia, 354 F.3d 215, 223 (3d Cir. 2003) (In the Third Circuit, the central inquiry is whether "the attorney's relationship with the newly named defendant gives rise to the inference that the attorney, within the 120 day period, had some communication or relationship with and thus gave notice of the action to, the newly named defendant.").
Corporation Counsel not only did not represent either defendant during the limitations period but also lacked notice of the identities of the defendants during the 120 day period required for relation back under Rule 15(c) and during the limitations period. The only communication with Corporation Counsel during the 120 day period were the February 7, 2007 Interrogatories which only generally identified the officers as two Caucasian officers, "one about 5'5-5'8, 200-220 pounds with light hair. The other officer is about 5'8-5'10, 160-200 pounds with plain clothes." (February 7, 2007 Interrogatories); See Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989) (finding lack of notice where "there is no indication that counsel knew or should have known that the defendants in each group would be named as co-defendants in the other action"). The key piece of identifying information, the date of plaintiff's arrest, was incorrect and, as a result, Corporation Counsel was unable to locate any records relating to the alleged incident (Seligman Letter at 1, 2). Unfortunately, it was not readily apparent from the face of the interrogatories whether the date cited by plaintiff for his arrest was incorrect by a matter of days, months, or years. Indeed, even if Corporation Counsel obtained and read the complaint during the 120 day period, the vague description of the incident contained in the complaint would not have facilitated counsel's efforts to identify which of plaintiff's arrests generated this claim.
The complaint stated that the incident occurred "on the streets of the Bronx" on July 12, 2004 [the incorrect date] and involved an assault by two police officers who chased plaintiff down and beat him in the head with a billy club and then handcuffed him (Compl. at 3). Indeed, it is not readily apparent from the complaint that the alleged assault even occurred in connection with plaintiff's arrest. The only clue, in this regard, is plaintiff's response "[m]e being assaulted and charged with assault." to the question "which claim(s) in the complaint did you grieve?" (Compl. at 4).
Plaintiff was incarcerated on other charges at the time that he sent Corporation Counsel the February 7, 2007 Interrogatories (Pet. Mem. at 1, 2).
Finally, even if plaintiff had identified the correct date, Corporation Counsel would not have been able to access the records of plaintiff's arrest because these records had been sealed pursuant to N.Y. Crim. Proc. L. § 160.50(1)(c). Therefore, Corporation Counsel had no notice of McCarthy's identity during the 120-day period required by Rule 15(c) or during the limitations period and no means of determining his identity.
N.Y. Crim. Proc. L. § 160.50(1) provides that
Upon the termination of a criminal action or proceeding against a person in favor of such person . . .
(c) all official records and papers . . . relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency.
Plaintiff cites Green v. New York City Dep't of Corrections, 93 Civ. 3360 (SAS), 1997 WL 96548 at *3 (S.D.N.Y. March 5, 1997) in support of his argument that Corporation Counsel need not know the identity of the individual defendant to be added because Corporation Counsel "has already appeared in this action and engaged in defending Fogarty on substantially identical claims" (Plf. Mem. at 6). In Green, however, Corporation Counsel was already representing the other named defendants during the limitations period. In this case, Corporation Counsel did not begin representing any defendant until after the limitations period had expired. In addition, the Court in Green found that Corporation Counsel should have known which particular officers were involved in the assault because they had all filed "Use of Force Reports" on the dates of the incidents identified in the complaint. The Court explained that "[u]nder Gleason, the defendants' attorney must have a reasonable basis to know which correction officers will be added as defendants in order for plaintiff's amended complaint to relate back under the doctrine of constructive notice." 1997 WL 96548 at *3. In this case, by contrast, Corporation Counsel had no basis upon which to distinguish the John Doe officers named in the complaint from all of the other officers on duty in the 46 precinct.
Notice of this action cannot be imputed to McCarthy, who was not named until almost a full year after the 120-day period had run, and as a result, the requirements of Rule 15(c) for relation back have not been met. Plaintiff's amendment, therefore, is untimely and must be denied as futile.
2. Mistake
The parties devote most of their respective briefs to the issue of whether plaintiff's failure to name McCarthy within the limitations period was due to a "mistake" concerning his identity as required by Rule 15(c). Defendant argues that plaintiff's inability to name McCarthy in a timely manner was due to a lack of knowledge, not a mistake within the meaning of Rule 15(c). Plaintiff argues that he has satisfied the "mistake" requirement of Fed.R.Civ.P. 15(c) because he engaged in diligent efforts to obtain the identity of the John Doe officer but was frustrated in those efforts due to a mistake regarding the date of his arrest (Plf. Mem. at 7; Plf. Reply. Mem. at 3).
As the Second Circuit explained in Barrow v. Weathers-field Police Dep't, 66 F.3d 466 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996) the definition of "mistake" as used in Fed.R.Civ.P. 15(c) "does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." See also Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (applying Barrow to preclude an amendment outside the limitations period "even when a suit is brought by [a] pro se litigant").
Courts in this Circuit have subsequently narrowed the holding in Barrow. The Court in Byrd v. Abate, 964 F. Supp. 140, 145-146 (S.D.N.Y. 1997), for example, distinguished Barrow on the ground that in Barrow the plaintiff had "failed to make any efforts to discover [the officers'] names until well after the statute of limitations had run" whereas, in Byrd the plaintiff "made a series of efforts to obtain the identity of the individual officer without prompting, and well before the end of the limitations period." Byrd v. Abate, supra, 964 F. Supp. at 145. The Court explained that Byrd had (1) requested the name of the officer nine months prior to the end of the limitations period and (2) after Corporation Counsel claimed that the name of the officer was unknown, requested the prison's log books to determine the officer's name. Finally, in Byrd, unlike in Barrow, the identity of the officer was "information uniquely within the knowledge of corporation counsel" and, therefore, Corporation Counsel's failure to respond to plaintiff's request for the prison log book until after the statute of limitations had run, justified allowing the amendment to relate back. Byrd v. Abate,supra, 964 F. Supp. at 146. See also Gonzalez v. Officer in Charge of Barber Shop on Duty on May 13, 1999, 99 Civ. 3455 (DLC), 2000 WL 274184 at *4-*5 (S.D.N.Y. March 13, 2000) ("Courts that have addressed the relation-back question in the pro se context after the decision in Barrow have concluded that a mistake includes the failure of a pro se plaintiff to amend `John Doe' pleadings within the limitations period because of an inability to discover the officers' names").
Even after Byrd, however, Barrow's holding that lack of knowledge of a defendant's identity is not a "mistake" within the meaning of Rule 15(c)(3) continues to be routinely followed, especially where a plaintiff fails to search diligently for the John Doe defendant's identity. See 3-15 James Wm. Moore et al.,Moore's Federal Practice-Civil § 15.19[d] (3d ed. 2008) ("This strict definition of mistake [adopted by many courts followingBarrow] is based in part on the view that the plaintiff should exercise diligence in discovering the names of the defendants");see also Walters v. NYC Health Hosp. Corp., 02 Civ. 751 (DF), 2006 WL 846711 at *3-4 (S.D.N.Y. March 31, 2006) (Rule 15(c)'s mistake requirement was not satisfied because plaintiff failed to diligently investigate all leads; defendant produced the medical records containing the individual defendant's name as well as a list of the residents and attending physicians on duty the night of plaintiff's injury well before the expiration of the statute of limitations); Sloane v. Town of Greenburgh, 01 Civ. 11551 (MBM), 2005 WL 1837441 at *4 (S.D.N.Y. July 27, 2005) (Denying the motion to amend because plaintiff knew or should have known defendant's identity through disclosures made by defendants well before the limitations period expired including an "incident form", a Greenburgh Police Department Supervisor's Report and a copy of the surveillance tape showing the pepper spray incident, all of which identified the defendant); Sepulveda v. City of New York, 01 Civ. 3117 (GBD), 2003 WL 22052870 at *3 (S.D.N.Y. Sept. 2, 2003) (there was no "mistake" concerning the party's identity because the identities of the two officers "were easily discoverable and provided to plaintiff" well before the end of the limitations period); Cole v. Miraflor, 99 Civ. 0977 (RWS), 2001 WL 138765 at *5 (S.D.N.Y. Feb. 19, 2001) (plaintiff's amendment did not relate back where plaintiff did not attempt to discover the identities of John Doe defendants until after the statute of limitations had expired; New York Attorney General's lack of cooperation held to be immaterial); Yanez v. Columbia Coastal Transp. Inc., 68 F. Supp.2d 489, 494 (D.N.J. 1999);Sidney v. Wilson, 228 F.R.D. 517, 520 n. 5 (S.D.N.Y. 2005).
The facts in this case fall in between Barrow and Byrd. Unlike in Byrd, the plaintiff here was aware that he needed to name the individual defendants before the expiration of the limitations period. Unlike Barrow, however, the plaintiff here diligently pursued the identities of the John Doe officers. He was frustrated in these efforts by a combination of factors including (1) plaintiff's own failure to initiate this action until a full twenty-eight months after the incident and his failure to serve interrogatories until only three months remained in the limitations period; (2) plaintiff's interrogatories specified an incorrect date for his arrest; and (3) Corporation Counsel's failure to respond to plaintiff's second set of interrogatories or his FOIA request. Because I find the lack of notice in this case to be dispositive, I need not decide whether the facts in this case qualify as a "mistake" for purposes of relation back under Rule 15(c).
The Honorable Lewis A. Kaplan's January 30, 2007 Order specifically instructed plaintiff that "[o]nce informed of the defendants' identities and addresses, plaintiff must file an amended complaint identifying his John Does by their proper names. . . . Plaintiff's failure to file an amended complaint within sixty (60) days of receiving the identifying information from the Office of Corporation Counsel may result in the dismissal of his complaint." (Docket Item 4 at 2).
IV. Conclusion
For the aforementioned reasons, the amended complaint adding Officer McCarthy does not relate back to the complaint naming the "John Doe" officers, under Rule 15(c). Accordingly, the claims brought against Officer McCarthy are untimely and plaintiff's motion to amend the complaint to include Officer McCarthy must therefore be denied.
SO ORDERED